R v Couper

[2003] QCA 429

SUPREME COURT OF QUEENSLAND

CITATION:	R v Couper [2003] QCA 429
PARTIES:	R v COUPER, Kelvin Lloyd (applicant)
FILE NO/S:	CA No 213 of 2003 DC No 1144 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX	25 September 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2003
JUDGES:	Davies and Jerrard JJA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal against sentence allowed 2. Appeal allowed 3. Sentence of three years imprisonment set aside and substituted by a sentence of two and a half years imprisonment
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PARITY – CO-OFFENDERS – DISCRIMINATION BETWEEN CO-OFFENDERS – where applicant sentenced to three years imprisonment for assault occasioning bodily harm whilst armed and in company – where applicant’s co-offenders pleaded guilty and received lower sentences – where applicant failed to appear at sentence proceedings – where learned judge considered the deterrence of home invasion offences an important element in sentencing – whether applicant has a justifiable sense of grievance based upon matters of parity
R v Brelsford [1995] QCA 594; CA No 301 of 1995, 14 September 1995, considered R v Fatnowna; ex parte A-G (Qld) [1999] QCA 492; CA No 259 of 1999, 25 November 1999, discussed R v Houghton and Grenrich [1998] QCA 137; CA Nos 425 and 426 of 1991, 26 February 1998, considered R v Nagy [2003] QCA 175; CA No 24 of 2003, 2 May 2003, followed R v Palmer [1998] QCA 293; CA No 181 of 1998, 6 August 1998, referred to R v Salmon; ex parte A-G (Qld) [2002] QCA 262; CA No 155 of 2002, 25 July 2002, considered
COUNSEL:	K Mellifont for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. JERRARD JA: The applicant was sentenced to three years imprisonment imposed in respect of his conviction after a trial for the offence of assault occasioning bodily harm whilst armed and in company. He seeks leave to appeal against his sentence on the ground that it is manifestly excessive.

2. The circumstances of the offence are that on 21 January 2001 the applicant, together with a man, Wayne Barben, and a woman, Stacey Lord, travelled to a house at Mt Mee where Barben's former de facto, Ms Lyndell Conn, was living. This was for the purpose of retrieving Mr Barben's nine year-old daughter.

3. Also living at that house was the complainant, a Mr Steven Draper, Mr Draper's de facto partner and a number of other children. Mr Barben entered the complainant's house in the middle of the afternoon armed with a length of steel waterpipe which Mr Barben had brought with…